SANDHU (Migration)

[2019] AATA 6092

SANDHU (Migration) [2019] AATA 6092 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SANDEEP SANDHU

CASE NUMBER:  1729307

HOME AFFAIRS REFERENCE(S):          BCC2017/2223584

MEMBER:Mr S Norman

DATE:9 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 09 October 2019 at 9:50am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – employer’s position nomination refused – refusal affirmed on review – no response to tribunal’s s s359A letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), r 5.19(3), Schedule 2, cl 187.233(3), 187.311

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicant applied for the visa on 23 June 2017. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Cafe or Restaurant Manager (ANZSCO 141111).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.233 of Schedule 2 to the Regulations.

6. The applicant was represented in relation to the review by his registered migration agent. The applicant did not respond to a s.359A letter and the Tribunal decided to proceed to a decision without a hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Nomination of a position

8. Clause 187.233 as applicable in this case is set out in full in an attachment to this decision. Essentially, it requires that that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, where the associated nomination was made on or after 1 July 2017, it must identify the applicant in relation to the position.

9. In addition, this criterion also requires that:

   ·the person who will employ the applicant is the person who made nomination

   ·the nomination has been approved and has not been subsequently withdrawn

   ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

   ·the position is still available to the applicant, and

   ·the visa application was made no more than six months after the nomination of the position was approved.

10. On 28/09/2017, the nomination application lodged by SILVER HEIGHTS AUSTRALIA PTY LTD was refused by the Department. On 28/09/2017, a letter was sent to Mr Sandeep SANDHU, through his appointed migration agent, giving him an opportunity to comment on the nomination refusal within 28 days in relation to meeting the requirement under cl.187.233(3). The Department had not received any response. The delegate continued that since the nomination application had been refused, the applicant did not satisfy cl.187.233.

11. Next, the delegate assessed the applicant’s claims under the Temporary Residence Transition stream. Under cl.187.223 the position to which a visa application relates must have been nominated and approved under r.5.19(3). Since the correlating nomination did not seek to meet the requirements of and was not assessed under r.5.19(3), the applicant did not meet cl.187.223. Since cl.187.223 was not satisfied, the delegate found that the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa in the Temporary Residence Transition stream was not satisfied.

12. The delegate also assessed the applicant’s claims under the Agreement stream. However, as the correlating position was not nominated by an employer in accordance with a labour agreement, the applicant did not meet cl. 187.242. Since clause 187.242 was not satisfied, the delegate found that the criteria for the grant of a Regional Sponsored Migration Scheme (subclass 187) visa in the Agreement stream was not satisfied.

13. Next, the delegate found that as cl.187.233, 187.223, and 187.242 were not satisfied, they refused to grant the applicant a Regional Sponsored Migration Scheme (subclass 187) visa.

14. By decision of 20 September 2019, the Tribunal affirmed the decision relating to the applicant’s nominator (Silver Heights Australia P/L). By s.359A letter dated 20 September 2019 (emailed to the authorised recipient), the Tribunal advised inter alia:

    On 20 September 2019, the Tribunal affirmed the Department's decision not to approve the nomination in relation to you made by your nominating employer, Silver Heights Australia Pty Ltd.

    The above information is relevant because cl.187.233(3) requires that the nomination made in relation to you by your nominating employer has been approved. If the Tribunal relies on this information it may find that the nomination in relation to you has not been approved and consequently the decision under review would be affirmed.

    You are invited to give comments on or respond to the above information in writing. Your comments or response should be received by 4 October 2019 …  

15. At the time and date of this decision, no response was received.

16. That said, as the delegate’s decision to refuse the nomination approval has been affirmed by the Tribunal, cl.187.233(3) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.187.233 is otherwise met. Therefore, cl.187.233 is not met.

17. Next, cl.187.311 requires inter alia that an applicant is a member of the family unit of a person who holds a subclass 187 visa granted on the basis of satisfying the primary criteria for the grant of that visa. As the applicant is not the member of a family unit for the purposes of this visa application, I am not satisfied that cl.187.311 has been met.

18. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Mr S Norman
    Member

    
    

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    ATTACHMENT A

    187.233(1)    The position to which the application relates is the position:

    (a)nominated in an application for approval that seeks to meet the requirements of:

    (i)subparagraph 5.19(4)(h)(ii); or

    (ii)subregulation 5.19(4) as in force before 1 July 2012; and

    (b)in relation to which the declaration mentioned in paragraph 1114C(3)(d) of Schedule 1 was made in the application for the grant of the visa.

    (2)    The person who will employ the applicant is the person who made the nomination.

    (3)    The Minister has approved the nomination.

    (4)    The nomination has not subsequently been withdrawn.

    (4A)   Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (5)    The position is still available to the applicant.

    (6)    The application for the visa is made no more than 6 months after the Minister approved the nomination.